Governing through Crime

Wednesday, July 8, 2015

It is a reminder of how hard the past is to leave behind
(especially when your leading politicians belong to it).By now the whole nation knows the basic
facts.Francisco Sanchez, a 45 or 52-year-old
Mexican national shot and killed Kathryn Steinle, 32 year old resident of a
nearby suburb in a chance encounter along San Francisco’s popular and seemingly
safe waterfront Embarcadero Boulevard last week.It had all the makings of what criminologists
call a “moral
panic” an untoward event, small or large, that becomes a vehicle for vast
social and political anxieties over race, class, and national identity.A low status villain---non-White, poor,
non-citizen, long criminal record, multiple incarcerations, kills a high status
victim--White, middle class, citizen, mother of children, never been in trouble
with the law. It occurs where it should
not, in a place associated with comfort and recreation. Events like this sometimes stay just local
news, but given the right conditions, they can blow up into a policy storm of
significant magnitude.Will this one?

It comes at a time when White anxiety over the growing
Latino population in the US has become a dominant obsession with the Republican
party. Indeed Republican politicians
have found themselves in something of a dilemma over which to attack among two
of their favorite targets; liberal cities like San Francisco, or the Obama
administration.Since the dominant media
narrative has focused on the San Francisco Sheriff’s Departments decision to
release Sanchez after the marijuana possession warrant he was being held on was
dismissed, without notifying ICE (the Immigration Control and Enforcement
agency) as requested, Republicans and now Senator Diane Feinstein have decided
to focus their rage on the City’s sanctuary policy, which mandates
non-cooperation with the aggressive detention and deportation policies of
recent years. Feinstein
wrote SF Mayor Ed Lee yesterday, excoriating the City and its sanctuary
policy, and all but blaming them for the crime.

The story line is a familiar one to politicians of
Feinstein’s generation who rose to maturity and power addressing it.In Feinstein’s case this was quite literal, as
she became mayor of San Francisco in 1978 after the high profile City Hall
murders of Mayor George Moscone and Supervisor and civil rights leader Harvey
Milk.According to the logic that became
common sense during the high crime eras of the 1970s, 1980s and 1990s, state
and local justice systems were overwhelmed by crime and prone ignoring criminal
threats by dumping known threats on the streets.According to this thinking (which I described
at length in my 2007 book, Governing
through Crime) only tough laws limiting judicial discretion, and federal
mandates requiring that felons serve the vast majority of their sentences and
protect Americans.The result: mass
incarceration and mass deportation.

A closer look at the narrative surrounding the Sanchez case
reveals it for the ideological construction it is.In fact Sanchez epitomizes why the logic of
exclusion and segregation that undergird our wars on crime and terror can never
achieve public safety.Start with the
focus on San Francisco’s Sheriff and the City’s sanctuary policy.It seem obvious and outrageous to Senator
Feinstein that Ms. Steinle would not have been killed that night but for the
Sheriff’s and the City’s failure to incarcerate him until he could be deported.But who was really the proximate cause of
Mr. Sanchez’s presence in San Francisco? He didn’t start here, but instead in
federal prison where he was serving time for repeated unlawful entries to the
United States. Nothing in federal law required ICE to bring Sanchez to San
Francisco to address a twenty-year-old warrant for marijuana possession.Such charges are routinely dismissed in San
Francisco and other cities, and the feds had apparently deported him five times
during that period without feeling compelled to bring him to answer justice in
San Francisco.Most likely the
overworked ICE staff found the warrant and realized it would be easier to dump
him on San Francisco then complete the paper work necessary to deport him
promptly (or even generate the kind of immigration warrant rather than “hold”
that would have prevented Sanchez’s release even under the sanctuary policy).

A second phony element is the idea that Sanchez was
obviously dangerous because of his seven felonies.In fact, as the media realized pretty early,
all but one of these felonies are for drugs or illegal reentry, one was for
assault (the least serious form of crime against the person, the equivalent of
a fist fight).If anything, Sanchez’s
record is monument to how stretched the felony concept has become in our
time.Seven felonies sure sound scary,
until you actually look at them.There
is nothing about his record that would have signaled to San Francisco
Sherriff’s deputies that Sanchez posed a serious threat. He appeared to be a not untypical inmate in
the jail: poor, disorganized, a drug user without a stable family or work life,
and probably some mental illness (indeed I suspect he has a chronic mental
illness and decompensated for lack of proper treatment during his federal
imprisonment).The shooting of Kathryn
Steinle appears to be a tragic escalation of this lifestyle.The weapon was apparently found on the beach
(the latest reports suggest it belonged to a federal
agent).He admits to having been
high on cannabis and sleeping pills.She
was shot in the back, consistent with his “accident” defense. His
most persistent deliberate pattern was apparently returning to the United
States; not to prey on its citizens ala Donald
Trump, but to support himself and perhaps to stay in contact with family here.

So what to conclude from the Sanchez case?Trying to protect ourselves from random
violence by incarcerating and deporting people on the basis of race and often
inflated criminal records is deeply flawed (and far from the slam dunk solution
that Senator Feinstein believes). The underlying
theory here is that crime is a product of dangerous people.Lock up or deport the dangerous people and
problem solved.But criminology now
suggests that crime is situational, a product of people with chaotic lives,
substance abuse, and chance encounters in environments that provide either
accelerants or de-accelerants (think of the gun that Sanchez found).There is no perfect solution, save for the
ideal of fixing all our “broken toys” (and even unbroken ones break in the spur
of the moment). Instead careful mental
health screening of the jail population and attentive post-release efforts to
keep people with mental health needs and drug abuse histories on the right
medications and off the wrong ones could do far better than incarceration for people
like Sanchez (what about his previous imprisonments protected us?).Nor quite clearly is deportation a
solution.For two decades now we’ve been
aggressively deporting people we label “criminal aliens”, creating significant
gang problems in countries like Guatemala and El Salvador (as many of them have
recreated the same gang milieus they used to survive in the US) without doing
much to reduce crime here.

I suspect this moral panic will run its course without
uprooting San Francisco’s sanctuary policy or placing Donald Trump in the White
House.The general trend is away from harsh
and exclusionary policies in both criminal justice and immigration.Sadly, the punitive storm that has arisen
around the Francisco Sanchez and killing of Kathryn Steinle is a reminder of
how powerful the hold of crime panic journalism, and hyperventilating crime
warrior politicians like Feinstein remains on our public policy and how slow
reform will probably be.

Tuesday, June 23, 2015

The mass murder of parishioners at the historic Emmanuel
African Methodist Episcopal church in Charleston, South Carolina law week, by a
young white supremacist intensified the already profound national conversation
about racism and violence that has been building since the killing of unarmed
teenager Trayvon Martin in 2012. There
are more topics in play around Charleston than any single post (even an over
long one like this) can address.So a
couple of brief points before an extended discussion of one question, already
taken up here on Prawfsblawg
by Rick Hill (but I come out a bit different).whether to categorize the act as one of
terrorism or as an example of a mentally deranged or ill person taking an
otherwise unthinkable action.My answer is: its an act of terrorism that calls for a political response, but we need a
more complicated framework to think about how mental illness and acts rooted in
diseased ideation can parallel acts of terrorism.

So briefly, two strands that in my view should not receive
significant attention.

On the political right, or at least its penumbras on
Twitter, the bogey of “black on black crime” has been raised; as if to say,
white killers are not the real threat facing black communities.Suffice it to say that this is a total
dodge.So called “black on black”
violence, overwhelmingly a problem of young men in super segregated communities
of urban poverty is a terrible problem, but unlike acts of racist violence, it
plays no role in maintaining the legacies of white supremacy; including
segregated neighborhoods, white privilege in access to jobs, educational
opportunities, and even sexual partners. We need social and economic strategies to
reduce levels of violence among young men in predominantly black communities
but it is by no means an answer to what occurred in Charleston or a reason not
to vigorously pursue one.

On the political left, one major response has been to revive
the ever-flagging gun control debate.While
less invidious, I also think this is something of a dodge.Roof was not using an assault rifle that
could fire scores of bullets in a short time.He apparently used a 45 caliber handgun and had to reload several times
to carryout all nine killings.No
politically realistic gun control proposal for decades has attempted to bar
access to such weapons and one is not going to emerge now.If President Obama could not lead a national
movement for gun control after the Sandy
Hook elementary school massacre, he sure isn’t going to do it now.Period.

A much bigger issue in my view is the question of how this
crime is being characterized, and particularly the politics behind the
alternatives of viewing it as terrorism versus a deranged act linked to some
sort of serious mental illness.Many
commentators on Twitter and in columns
and Jon
Stewart, have pointed out that early responses from politicians and
mainstream media figures shied away from identifying the perpetrator Dylan Roof
as a terrorist; raising instead the possibility that mental illness lay behind
this terrible act of violence.The
critique is that white people who kill are rarely described as terrorists (or
other categorical terms like “thug”) while people of color, especially African
Americans and Middle Eastern or South Asian Muslims are.This point is indeed well taken.In media and lay discussions, mental illness
tends to emerge as an explanation for behavior that strikes the speaker as out
of character for the type of person involved.Since we typically know little about the actual people involved, at
least initially, race is hugely salient in forming this judgment about
character.When the people unreflectively
assign white people who kill the label “mentally ill,” the assignment testifies
to the speaker’s probably unconscious assumption that white people do not
engage in unprovoked acts of violence (but that African Americans and Muslims,
do).

It would be a mistake however to go further and assume that
any claim of mental illness to explain a person’s acts of violence is dissembling.There are many homicides where the delusional
beliefs generated by psychotic processes are clearly at work.James Holmes, who killed 12 people in an
Aurora, Colorado movie theater in 2012, is a likely example.Few people can make sense of his crime
without relying at least in part on his well-documented history of mental
illness.As is typical is such cases,
even the prosecution acknowledges the presence of mental illness but asserts
that it fails to reach the extreme threshold established for a legal “insanity”
defense in most states today (what amounts to delusions so profound that they
prevented the perpetrator from understanding that nature or societal proscribed
nature of their conduct).It is also not
uncommon for people living with psychotic mental processes to be attracted to
extremist political ideologies and conspiracy theories, because their content
often has a striking affinity with the paranoid pattern of psychotic ideation.Such people may sound like racists or anti-Semites
but their narrative comes from the disease, not their values.At the same time we should not be surprised
that many of the participants in clearly politically motivated terrorist
attacks, who are drawn to the values behind those politics, also have mental
illnesses (not typically the leaders, but sometimes those persuaded to
undertake the fatal or at least very dangerous acts involved).

Putting aside the legal test of insanity, what should be
most salient to the public conversation about such acts of extreme violence is
whether a particular incident seems to be best explained by political beliefs
and values or by psychotic mental processes that lie behind it (even when both
are involved).Are the key ideas behind
the crimes (and there always are key ideas, describing violence as senseless is
almost always incorrect) rooted in the subject’s values, long-term beliefs, and
commitments?Or are they more likely to
have been filtered from the ever available stream of hateful ideas through a
mind disordered by disease.Or to put it
another way, is the best way to prevent another such incident to expand
mental health screening and treatment services, or does it require a political
process of some sort (from war to conflict resolution to social movements).

In what follows, I would like to offer a preliminary (and
possibly flawed) framework for thinking about acts of violence so awful that
normal human motivations (jealousy, anger, despair) simply do not seem
sufficient.I start with a typology that
moves from those most clearly influenced by disease, to those most clearly
influenced by values.

No political beliefs or values can explain the Aurora
killer, James Holmes’ actions.Even his
prosecutors view him as person motivated by individual considerations, e.g., to
achieve fame, or in response to being rejected by a girlfriend, (considerations
that rarely result in actual violence where mental illness is not at least a
background factor).Whether or not the
jury decides that Holmes’ deserves the death penalty, few if any people can seriously
believe that executing him will prevent the next movie theater massacre.Meanwhile, expanding mental health screening,
and treatment, certainly for those seeking to purchase assault weapons, would
provide at least some measure of protection.

At the other extreme are the September 11, 2001 terrorist attacks
on the World Trade Center in New York and the Pentagon.At least one of the convicted plot participants,
Zacharias Moussaui, exhibited behavior throughout his trial (in which he was
most problematically allowed to represent himself) consistent with major mental
illness (although he was found competent to stand trial, that is a fairly low
threshold that excludes most defendants with mental illness).Yet even if Moussaoui and other plot
participants were in part influenced by their mental illnesses to become
involved, the plot as a whole had an overwhelmingly political logic.The attack appears to have been motivated by
a strategy of provoking a “clash of civilizations” between the Christian west
and the Muslim world (a strategy that seems at least partially successful in
generating the Iraq and Afghanistan wars, the rise of Isis, and a host of other
developments still far from settled).There
is no easy political option to resolve terrorism associated with militant
Islamic extremism, but surely politics represents the only realistic path.Few could believe that even the most generous
expenditures on mental health screening and treatment (presumably on a global
basis) are unlikely to significantly reduce further acts of terrorism.

Of course, I do not mean to imply it will always be easy to
determine whether a particular atrocity is best understood as a reflection of political
values or diseased ideation.Consider
Theodore Kaczynski, known as the “Unabomber” for his practice of sending letter
bombs to scientists and engineers involved in research that Kaczynski
associated with the rise of technological civilization.Kaczynski’s manifesto, published originally
in the New York Times and the Washington Post, in a controversial deal to end
his attacks, presented his belief that industrialization has done irreparable
harm to both nature and humanity and that therefore killing people in an
attempt to halt it was justified.His
ideas clearly have a political logic, one that resembles the beliefs of others
involved in what is sometimes labeled “eco-terrorism”.Still, a close reading of the manifesto
suggests a highly idiosyncratic perspective and narrative, shared in fact by
few others; and acts far more violent than those typically undertaken by even militant
environmentalists.Mental health
screening (perhaps of overachieving academics), seems more promising than a
political or security strategy to stop the next Unabomber.

This brings us at last to Dylann Storm Roof, the perpetrator of the Charleston AME massacre.I would not be surprised at all if forensic
psychiatric examination by both defense and prosecution turns up evidence of
mental illness, but the logic of his act and even the words he articulated have
a clear political sensibility to them; one of unremitting racialized hatred and
fear of African Americans.We still do
not know precisely where in his life, these ideas and values began for Dylann
Roof. I would begin by looking at the
beliefs of his parents (does anyone know whether spelling Dylann with two “n’s”
and giving the middle name “Storm” is any indication that his parents were
involved in Neo-Nazi or white supremacist groups and ideologies?). Most of us get our ideas about race and racism
from our parents.Mine (of blessed
memory) were white allies of the civil rights movement and taught us to believe
that the project of completing emancipation was the defining mission of the
modern American nation. The discovery of Dylann Roofs’ online manifesto of race
hatred provides a direct link to the thinking and language of existing white
supremacist organizations. Unlike
Kaczynski’s, Roof’s ideas are not idiosyncratic or even marginalized but belong
to a well-developed body of ideas that once dominated Southern politics and
continue to have an important influence nationally on Conservative and
Republican politics.Indeed, Roof
specifically cited the ideas of the Council
of Conservative Citizens, a well-known white supremacist group with roots
in the violent
segregationists of the 1960s and continuing
interest in the Republican Party.

What was the strategy?Roof reportedly told a friend that wanted to start a race
war.I’m no expert in the logic of
race wars, but this rings true to me as the primary motivation for the
act.It explains the target, a historic
church long a focus of white
terrorism against African Americans, and where the victims would draw the
maximum amount of outrage and clarity as to the racial meaning of the
murders.Likewise the date, June 17,
corresponds to date on which a slave rebellion was planned to launch in
Charleston in 1822 and which involved Denmark Vesey, a former slave who was a
founder of Emmanuel AME Church.

I would love to hear from some historians on the origins of
the “race war” trope in American racist ideology. Its most significant modern proponent until
now is Charles Manson, who taught his followers to prepare for an apocalyptic race war culminating in a black uprising that would overthrow the United States (a fear he
apparently shared with J. Edgar Hoover) and that his Family would then emerge
to lead what was left of civilization. Manson orchestrated the murders of
privileged white victims and then sought to blame the crimes on African
Americans by leaving stolen items in clearly black neighborhoods.He imagined a law and order crack down on
African Americans would lead to an uprising and ultimately his rise to
power.Manson called his plan “Helter
Skelter” after the Beatle’s song which he believed contained a prophesy of
these events. Manson, originally from
Oklahoma, has been racist all his life, recall the swastika he carved on his
forehead during the trial, who assumed necessarily inferior blacks would lead
the country into a disaster and leave his Family in charge.

The whole idea of race war seems to be a distinctively white
supremacist fantasy/nightmare.I could
be mistaken, but from my knowledge of history, even armed and militant African
American groups have always used violence defensively, or to eliminate
perceived movement traitors, not to provoke a race war that African Americans, very
much a minority demographically and in political influence, would almost
certainly be the ultimate victims of.

So how to prevent another racist massacre? In my view the
political option of an aggressive social movement to finally drive white
supremacy out of its existing strongholds in American society is what is called for.Don't get me wrong we should spend a lot more
money on mental health as well. Compared to money spent on prisons, seeking the
death penalty, or even hiring police officers, mental health spending is
probably a good way to prevent violence in general.I fear, however, that it would do little to
prevent the kind of racist violence we are dealing with here.So long as white supremacist narratives are spread
by groups like the Council of Conservative Citizens, and sheltered by the
powerful Republican Party, there will be no shortage of marginal characters,
some of them with mental illness, attracted to its ideology and willing to put
their ideas into action.

If we are to prevent this kind of atrocity, a political
strategy is clearly necessary.My colleague
here on Prawfs, Rick Hills worries that if forced to choose between their
Southern heritage and common decency, they will choose the former.I feel we need a strategy that forces that
choice.(We’ve had Fifty years of letting
them slide by on being American and Confederate, its time to choose). It
consists of calling out, boycotting, demonstrating against and generally shaming
the leadership of racist political organizations, and politically destroying
any politician that doesn’t place miles of distance between themselves and this
entire ideology. This requires acts of
public memorialization such as have been undertaken in other countries with a
history of systematic racist violence, like Germany.This means cleansing the American South of
the residual honorific symbols of the Confederacy: everything must go, flags,
statutes of Confederate generals, or parks or streets carrying their
names.This also must extend to the segregationist
descendants of the Confederacy.Pictures
of segregationist governors should be removed from state houses (they can go to
museums along with the flags and statues).The Congress of the United States, dominated by segregationists for most
of the 20th century, should remove any monument to, and posthumously
condemn all of the major figures (most prominently former South Carolina Senator
Strom Thurmond). Just as importantly
it is time to finally make the history of white supremacy and racist violence
against African Americans visible in every American city through museums (a new
Smithsonian museum of African American culture
is about to open in Washington D.C.), public monuments, and street names
(Charleston can have nine new ones).

Fortunately, American society is lot less prone to race wars
than white supremacists believe in their fevered fantasies.Manson’s murders failed to launch one
(although they did help fuel the punitive turn in American penal policy) and
clearly Dylann Roof has failed in his ambitions as well.But let us make sure his victims did not die
for nothing.Their blood calls on all
Americans of conscience to join an unrelenting cultural war against white
supremacy in all of its manifestations.

Saturday, May 9, 2015

It was a zinger worthy of a Presidential debate (and almost certainly just as planned). Justice Samuel Alito, confronted Federal Public Defender Robin Conrad in the midst of her oral argument on April 29 in Glossip v. Gross, a case challenging Oklahoma’s lethal injection execution procedure.

Yes. I mean, let's be honest about what's going on here. Executions could be carried out painlessly. There are many jurisdictions ­­ there are jurisdictions in this country, there are jurisdictions abroad that allow assisted suicide, and I assume that those are carried out with little, if any, pain. Oklahoma and other States could carry out executions painlessly. Now, this Court has held that the death penalty is constitutional. It's controversial as a constitutional matter. It certainly is controversial as a policy matter. Those who oppose the death penalty are free to try to persuade legislatures to abolish the death penalty. Some of those efforts have been successful. They're free to ask this Court to overrule the death penalty. But until that occurs, is it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty which consists of efforts to make it impossible for the States to obtain drugs that could be used to carry out capital punishment with little, if any, pain?

The diatribe won the lions share of media attention on the case and much of it seemingly approving. The stunning nature of his attack on our adversary system has gone little remarked. Indeed Justice Alito seemed to be refreshingly candid (Chris Christie style): “let’s be honest about what’s going on here.” He appealed to his media audiences common sense that executions could be carried out painlessly (although four of his colleagues doubted that the last time SCOTUS reviewed lethal injections in Baze v. Rees). He acknowledged that abolitionists have been making significant political progress lately winning legislative abolitions, with “red” Nebraska only the latest state legislature to express a desire to rid the law of capital punishment. He invited direct challenge to the constitutionality of the death penalty: an invitation that might have seemed totally empty a few years ago but now seems to have increasing constitutional force (see Jones v. Chappell finding the California death penalty unconstitutional on grounds of being arbitrary and capricious).

But behind this this seemingly candid and refreshing acknowledgment was a remarkable attack upon a lawyer doing exactly what lawyers are supposed to do: zealously advocating for her clients. Justice Alito (echoed by Justice Scalia) cast Federal Public Defender Conrad and her colleagues as duplicitous, pleading the terrible risk of pain facing their clients while working behind the backs of the courts and states to deny states access to chemicals that could painlessly cause death and thus subverting the honorable workings of justice. Absolutely no evidence is presented or even suggested for this conspiracy. In fact, it is a mirror image of reality. The problems American states are confronting in finding drugs to make lethal injections look kind and gentle lie in a growing global movement against capital punishment in which America is increasingly seen as part of an anti human rights “axis” along with Iran, China, and Saudi Arabia. Federal public defenders (and indeed many other Americans) may well sympathize with this global movement but they are hardly relevant to that movement. As Justice Alito must surely know, the European Union-our major trading partner and political military ally and the site of many of the world’s leading pharmaceutical producers---are legally bound to oppose the death penalty where ever it exists. Federal public defenders are even more irrelevant to the completely understandable fact that many businesses will need no additional reason other than publicity to choose to disassociate their products from the deliberate killing of human beings.

The real guerilla war is being waged by death states that continue to pursue executions even as crime remains at historic lows and public opinion turns against this archaic ritual. Many of these states are making a farce of the Court’s own decades long effort to forge a more legal and more humane death penalty by using all means, legal or otherwise, to acquire execution drugs; and obstructing prisoners and their advocates from discovering even the most basic scientific facts about how the state proposes to take their lives. Meanwhile the death penalty majority on the Supreme Court has fought its own battle to prevent continued judicial oversight of state executions. Indeed, the first named petitioner in the case in which Justice Alito delivered his appeal for honesty was executed earlier this year even as the issue he raised was scheduled for Supreme Court argument.

Justice Alito is correct that the times are changing rapidly for the death penalty. In retrospect, the rejuvenation of capital punishment in the 1970s after a couple of decades of declining public support may have had more to do with the high violent crime rates and toxic racial politics of that era---conditions that have changed in many respects---than any core American commitment to capital punishment. Serious challenges to the constitutionality of the death penalty may soon find themselves before the SCOTUS. One can only hope that Justice Alito will bring a less closed mind to those arguments than he did to the ones Federal Defender Robin Konrad (and Justice Sotomayor) presented him in Glossip.

It is our common law tradition that judges are to consider the fate of litigants one at a time, and answer the compelling legal questions that their treatment poses. Yet in his exchanges with Ms. Konrad Justice Alito showed an injudicious interest in capital punishment as an institution. In his willingness to defend the death penalty (and his even odder insistence that if it is to end, it must receive the presumably more honorable dispatch of a direct constitutional assault) Justice Alito seems to be more committed to that institution than to our Constitution.

Justice Alito’s passion for the death penalty recalled for me the curious character of the "Officer” who conducts a “Traveler” to witness the execution of a condemned prisoner in Franz Kafka’s haunting story The Penal Colony. The story, set in a little described “penal colony,” involves an execution ritual in which the condemned are placed into a complex machine known as the “harrow” that effectively kills them by slowly inscribing the name of their crime into their body with metal needles as they are rotated within the harrow. The harrow requires constant tinkering which the Officer enthusiastically supplies. The Officer acknowledges to the increasingly uneasy Traveller that the colony’s commitment to this strange ritual is in fact waning fast, but he remains so loyal to it that he abandons all restraint and ultimately even self preservation in attempting to obtain for it at least one last victim.

Like the penal colony’s harrow, our execution machinery needs constant tinkering, both technical and legal. Some Justices, Harry Blackmun and John Paul Stevens, once supporters of the death penalty, eventually renounced “tinkering with the machinery of death” and denounced the penalty as irreconcilable with commitment to the rule of law. More Justices soon must make clear that their decades long servitude to this institution must come to an end. But perhaps the last will be Justice Alito, who like Kafka’s Officer seems increasingly willing to depart from his role in order defend the machinery of death against law itself.

Saturday, January 3, 2015

The astoundingly crude and arrogant response of NYPD rank and file to the tragic murder of two officers by an unstable young man last month (read the fascinating story by Kim Barker, Mosi Secret and Richard Fausset in the NYTimes on the man who killed the officers here) raises an interesting question, do we really need the police? Angry at Mayor Bill DeBlasio for winning an election on reforming police practices, and speaking honestly about how people of color feel about the police in the aftermath of the Michael Brown and Eric Garner killings, NYPD officers have undertaken a public campaign of not using their arrest powers unless the situation absolutely requires it, resulting in an unprecedented drop in both arrests and parking tickets. Angered that citizens and their elected officials should ever question how the police behave, NY "finest" are saying in effect, "you'll have it our way, or you won't have it at all." May be, just may be, its time to say "let's not have it this way at all, and if you can't change, we need a new alternative. "

My criminological colleagues will be cringing. Cannonical doctrine suggests that while better policing may lead to better public safety results, even the worse police department is better than none at all. In a famous natural experiment in 1944, documented by criminologist Johannes Andeneas, the Nazi's arrested the entire police force of occupied Copenhagen (fearing that they would aid an Allied effort to liberate the city). Despite the Nazi's own credible threats to execute criminals on site, and what one might expect to be strong feelings of solidarity among the citizens of the occupied city, robberies and larcenies soared; similar results have emerged from police strikes (see a summary by Lawrence Sherman of some studies here).

But we need not consider replacing the police with nothing. The real question is why, despite a century and a half of incredible urban and political change in industrial democracies, we still cling to the idea of the police invented in the early 19th century to contain the dangerous classes of London and New York? I'm not ready to float a comprehensive proposal now but a few thoughts to get our collective imagination going while we wait to see how NYPD's Copenhagen experiment plays out.

Most criminologists acknowledge that individual willingness to obey the law (because it seems legitimate to do so), and collective efficacy at naming and blaming those who do not obey the law, are more important than formal efforts at social control carried out by police and courts. Indeed the latter can do little without the former.

Arrogant, aggressive police tactics that cause individuals to lose their sense of the law's legitimacy, and interrupt the communities capacity to enforce norms of civility, may encourage more crime than they deter.

Police departments are really conglomerations of services: traffic, detectives (homicide, robberies), narcotics/vice, SWAT team, patrol. In our current model, the generalist patrol officer who can wield a gun and a pair of handcuffs is the paradigm and all other variations have to come through this central paradigm. Perhaps we should take a lesson from our neoliberal corporate friends and think about breaking up this conglomerate, reshuffling the segments so they can develop training methods and cultures conducive to their greatest efficacy.

In reimagining the police, questions of level of governance are worth considering. Some functions, like detectives or SWAT teams, seem best organized and deployed from the center of the city with equal application to all neighborhoods. Patrol, in contrast, might well be organized very differently in different neighborhoods to achieve the optimal forms of police presence in the community.

In 1970, Berkeley voters considered a proposal, supported by radical members of UC Berkeley's School of Criminology, to break up the police department into three neighborhood units and require police officers to live in the neighborhoods they policed. The initiative was defeated overwhelmingly but that was at the height of the crime wave of the 1960s and at a time when middle class voters were becoming collectively traumatized by crime fear.

Do we really need the police? So far crime has not gone up in NYC, but criminological doctrine suggests it is only a matter of time before the criminally inclined decide there is little price to be paid for acting on those impulses. On the other hand, crime is highly situational, and responsive to individual and collective sensibilities. Perhaps the same emotions that have led tens of thousands of New Yorkers to protest against aggressive policing (and earlier to vote for Bill DeBlasio) has led more individuals to feel a sense of legitimacy in the public order of the city and a sense of collective efficacy.

I would not want to rely on individual consent and collective efficacy to keep crime low on their own indefinitely. We need something like the police, but not "the police" as we've known them. Police are important, but they are not like air. We can live without them when that is necessary. And we can reinvent them.

Friday, December 5, 2014

From the perspective of tens of thousands of protesters around the nation this week, the deaths of Michael Brown in Ferguson, Missouri, and Eric Garner in Staten Island, reflected an unfathomable decision by white police officers to kill unarmed black men engaged in trivial criminal (if any) behavior. To thousands of police officers (and their families), these deaths fit in a different narrative, one where very large and powerful men responded to lawful police efforts to complete a stop (in Brown's case) or an arrest (in Garner's) with violent resistance. From the first perspective, these are cases of outright murder, and the failure of grand jurors in Missouri and New York to indict them, evidence of clear racism. From the second perspective, these cases are work accidents, tragedies that might have been avoided with better technique but hardly felonies.

The gulf seems wide indeed. No wonder President Obama and Mayor Bill DeBlasio wring their hands, utter somber statements about bridging the gap between police and community, and suggest more training. But the gap between police and the black community has always been wide (its ironic that yesterday was the 45th anniversary of the execution style police killing of Chicago civil rights leader and Black Panther Fred Hampton in 1969: an event that made this then 10 year old wanna be political activist, permanently afraid of the police), and today's police have never been better trained and equipped (especially the much vaunted NYPD). The problem I believe is not the people or the police, its the political "war on crime" that simultaneously valorizes cops as warriors in an existential struggle with violent crime and compels them to engage in a necessarily brutal campaign to clear the streets of those widely perceived not just by police but by the majority culture and their politicians, as a threat to public safety, i.e., young men of color.

The war on crime may be a metaphor, but as George Lakoff and Mark Johnson (Metaphors We Live By) taught us long ago, metaphors are a political DNA that reorganize institutions and lives. Wars are about three things: territory, populations, and security. The goal in war is to dominate a territory by eliminating or repressing resistance, pacifying the population, and establishing a regime of security that maintains both states of affairs (just pay some attention to the Israel/Palestine conflict if you need a refresher on what that looks like in its explicit form). America's war on crime, declared by top political leaders of both parties in the face of the high violent crime rates, and political polarization of the 1960s (see chapters 1 and 2 of my book, Governing through Crime), has made local police forces the frontline troops of a relentless campaign to clear urban areas of those perceived to be a threat to public safety. Whether dubbed "STRESS" (as it was in Detroit in the 1970s), Broken Windows (the 1980s) or Zero Tolerance policing (1990s), this war strategy has required police officers (sometimes with powerful work place disciplinary techniques) to confront young men of color on a daily basis, and to use the opportunity of minor criminal violations to both clear the streets of them and create a security regime in which they choose to avoid public spaces.

The fact that this war on crime descended on American policing at a moment when it was only beginning to address the culture of ethnic and racial hierarchy that dominated mid-20th century police forces left much of this culture intact and carried it over into the greatly expanded (and much more diverse) forces of the 21st century.

If that sounds familiar may be its time to stop focusing on individual cops like Darren Wilson and Daniel Pantaleo and whether or not they get indicted (does anyone here in Oakland really feel that much better because Oscar Grant's killer was prosecuted, convicted, and went to prison?). Instead we need to place responsibility at the top, where leaders in the White House, Governor's mansions and Mayor's offices have glorified the war on crime as a patriotic American mission. Its time President Obama and other leaders to come forward and formally declare this war over. The damage it is has done to our society through mass incarceration, militarized policing, and wartime judicial retreats on human rights is already immense. Just as important, the context has changed enormously. Violent crime is down to historic lows (and neither prisons or policing have made more than a partial contribution to that) and many of the sociological processes that drove high crime in the period 1965-1995 (deindustrialization, suburbanization, mass addiction to novel drugs) have run their course. As Bill DeBlasio's campaign for mayor demonstrated, voters today are increasingly repelled by the war on crime and believe that the city and nation face other challenges.

A formal declaration of an end to the war on crime should include several key elements.

1. Recognition that the war on crime was an undeclared state of emergency that severely comprised the legal and political rights of Americans.

2. Instruction to law enforcement agencies that this state of emergency is over and they are to return to maximum fidelity to the principles of our constitution including respect for the dignity, liberty, and equality of every person.

3. Creation of new human rights agencies to enforce point 2 and to identify the steps necessary to remediate point 1.

Tuesday, October 21, 2014

California Proposition 47, on the ballot for voter consideration this November, would change the legal classification of many "nonserious and nonviolent property and drug crimes" from felonies to misdemeanors (read the details on ballotpedia.orghere). This simple change has important consequences. A crime classified as a felony may be punished with a sentence in state prison, while a crime that is classified as a misdemeanor may be punished only with probation or a sentence of one year or less in a county jail. If voters approve Proposition 47, Californians convicted of crimes that pose little or no risk of violence like forging a check or receiving stolen property if the amount involved is worth less than $950 dollars (the existing dollar amount was set in the 1970s), or simple possession of drugs, would no longer end up in state prisons. Moreover, the law would allow prisoners currently under felony sentence for one of these crimes to be re-sentenced "unless court finds unreasonable public safety risk," a change that could result in as many as 10,000 fewer prisoners in our dangerously overcrowded and degrading state prisons.

The debate on Proposition 47 has mostly turned on how dangerous these crimes and the people who commit them are. Proponents, supported by most criminological research, argue that prison is a costly (approximately 62K a year for the average prisoner in California) and unnecessary way to address these non-violent crimes. Probation and if necessary some jail time have at least as good a chance of curbing future criminal behavior (our prisons have had a very high rate of recidivism and make no effort at rehabilitation) and with lower costs fewer prisoners means more money that Proposition 47 would channel into law enforcement, drug treatment, and victim compensation. Opponents, most of the state's District Attorneys, claim that the law would weaken their ability to send truly dangerous people who have been convicted of a relatively minor crime to state prison and use the threat of state prison to compel less dangerous people to accept drug treatment as part of felony probation (probation is also an option for many of these non-violent, non-serious felonies, at least for first offenders).

But the real issue is not crime (which remains at historically low levels throughout California); it is mass imprisonment. Beginning in the late 1970s and early 1980s, California embraced prison as the answer to what was then a historically high level of crime in the state and began to swell its prison population from around 20,000 prisoners in 1975 to nearly 180,000 in 2006. (This was a national trend but California took a typically extreme approach, read more about the causes in chapter 2 of Mass Incarceration on Trial). This explosion in prisoners was a product of two different changes in sentencing. First (and the part that Proposition 47 addresses) prosecutors began using their discretion to seek state prison time for crimes that could be charged as misdemeanors and had been historically. This meant tens of thousands of people with relatively short prison sentences flooded our prisons and clogged (along with tens of thousands of technical parole violators) the reception centers where prisoners are supposed to be classified and assigned longer term housing but which instead became packed irregular wards with overcrowding approaching 300 percent of design capacity. Second, law makers (aided by the Determinate Sentence Law of 1976 which gave the legislature power to set prison sentences) lengthened the sentences of most felony crimes, especially violent crimes. This meant that tens of thousands of prisoners who in the past would have left prison as they aged out of serious criminal behavior (generally by 40), remained in prison into and in many cases beyond middle age, when chronic illness begins to generate increasing suffering and costs.

The inability to manage these mounting problems of overcrowding and health care led to the remarkable 2011 decision of the Supreme Court in Brown v. Plata to uphold a massive population reduction. The State responded with the realignment package in November 2011 that sent most people convicted of non-serious, non-sexual, non-violent felonies to county jail or probation rather than prison. Proposition 47 expands realignment by taking the least serious of these offenses out of the felony category altogether. That is important because even under realignment, courts can sentence people to years of incarceration (only in county jail rather than state prison); classifying these low level crimes as misdemeanors assures that they have a better chance of receiving probation and caps any jail sentence at 1 year. Moreover, felony convictions on your record make it much more likely that you will go to state prison for your next offense. Eliminating minor offenses that do not warrant the felony label makes that kind of criminal record enhancement inherently fairer and more objective. It is also important because the label felon continues to have important negative consequences that last years or even decades for employment, housing, and social benefits. Conviction of a felony makes it much harder for people to rebound from crime and punishment to become productive citizens.

Another important group of prisoners that Proposition 47 might help are those who are serving an enhanced "second strike" sentence under the original 3-Strikes law (which had the effect of adding 10 years to the sentence for any felony if the person was convicted of a violent or serious felony previously) but who were not aided by the last 3-Strikes reform (which applied to 3-strikers). This could involve relief for thousands of existing prisoners facing years more imprisonment; helping the state meet its Brown v. Plata obligations with little risk to public safety.

Beyond helping to directly reduce the number of people actually in prison or exposed to it for minor crimes, the most important feature of a significant victory for Proposition 47 is the signal it sends that the toxic crime politics of the 1980s and 1990s is truly behind us. In those decades a media frenzy about violent crime produced ballot initiatives that pushed crime policy significantly toward the extreme, leaving politicians scrambling to catch up with matching legislation. If Proposition 47 wins it will be the second election cycle in a row in which voters have signaled they want more reform than Sacramento can deliver. Voters are correct. Today's leading politicians in both parties are talking about reform, but their vision is so cautious that we are unlikely to escape mass incarceration through legislated reform alone.

So far polls suggest Proposition 47 could win handily, even in an election cycle expected to be weak for younger more liberal voters. Prosecutors and victim organizations tightly aligned with law enforcement are kicking up their opposition. The opposition argument comes down to two points, trust and fear. Prosecutors say "trust me" with the discretion to use felony power even on minor crimes and I'll find the truly dangerous criminals before they commit a bigger offense. That was the argument for Three-Strikes (the classic example of toxic crime politics at its worst) and voters are rejecting it now. Instead opponents are increasingly relying on a second tactic, fear, bringing up demonized examples of offenders who might "benefit" from the changes. Two key examples are people caught in possession of rape drugs and people caught in possession of stolen weapons. Assuming the street values of the drugs and the guns were below $950, the possessors could no longer be charged with felonies. Big deal. First of all police and prosecutors have many options in charging. If someone is possessing rape drugs with the intent of raping someone, that is the crime of attempted rape. If someone is in possession of stolen weapons, they may also be guilty of a burglary in which they stole the weapons. Prosecutors will say that it is difficult to convict people of serious crimes, and much easier to use possession offenses to go after the bad guys. But that is exactly the thinking that got us into mass incarceration and what we have to use the initiative system to escape. Besides, Proposition 47 leaves plenty of of "protection" in place. The reduction to misdemeanor status does not apply to people previously convicted of murder, rape, or certain sexual and gun crimes (many of the same folks the prosecutors are demonizing). Moreover, misdemeanor conviction allows for probation or a sentence of up to a year in a county jail, methods address criminal behavior at least as effectively as imprisonment.

Approving Proposition 47 is a simple and effective way for voters to take another step in leading California away from the moral precipice of mass incarceration. We cannot trust Jerry Brown or the legislature to remove the taint of barbarism that hangs over a prison system that the Supreme Court declared "uncivilized." Brown gave us the law enforcement friendly Determinate Sentencing Law in 1976 which helped speed mass incarceration in California, and he has now aligned himself with protecting the status quo in our prisons. While his re-election is inevitable, voters cannot wait another four years for leadership on restoring dignity and human rights to California's legal system. We will need to do more. With half of California's prisoners now serving death, life without parole, life with parole, or multi decade determinate sentences our prisons are rapidly becoming even more degrading and expensive as they concentrate on aging prisoners with little hope. Incarcerating the vast majority of these older, sicker prisoners makes no penal sense and will continue to limit the availability of tax revenues to solve the state's pressing environmental and educational needs. To change that we will need an initiative to roll back sentences on violent crime. Yes, you read me right, we need shorter sentences for violent crimes. The vast majority of people convicted of an offense against the person (what California's penal code calls violent crimes) are no more likely to commit such an act in the future than those who have not been convicted but come from the same social circumstances and situation. Most violence is situational, ignited by complex combinations of conflicts, propensities and accelerants like drugs and alcohol. For the few that have a long term propensity to violence, proper risk assessment and the use of some indeterminacy in our sentencing laws for violent crime could allow for selective incapacitation. There are far better ways to spend money on reducing violence than incarcerating aging prisoners who once did something violent. But for now few even in the anti-mass incarceration community are ready to take on that fight. Please join me.

Course threads are intended to encourage Berkeley students
to integrate their knowledge of particularly important contemporary themes
across the disciplines they study. They
do not replace majors (like Sociology, Physics, or German) or create a “minor”
(which are generally also disciplinary), instead a course thread is a way for
students to deepen their knowledge of a subject whose pervasive influence on
human life spills-over the boundaries of existing disciplines and
professions. The “thread” connects
existing courses (and we hope their faculty and Graduate Student
Instructors). Students who complete
three courses in a thread, and participate in a course threads symposium (offered each semester), will have the course thread noted on their official
university transcript.

Incarceration belongs among those
topics.After several decades of rising
imprisonment rates (and the aggressive policing, prosecution, and jailing that
is required to produce that), Americans live in an environment that is
unmistakably carceral. While its most violent aspects are highly concentrated
in communities of color and poverty, the carceral imperatives has touched
virtually all communities.Whether you
live in a high crime neighborhood with many abandoned buildings, open air drug
markets, and regular police actions, a “gated community” in the suburbs, or a
newly gentrifying neighborhood on the periphery of a revitalizing downtown, the
forms of life, ways of building and dwelling, ways of exercising power, are
marked by America’s experiment with mass incarceration which has placed 1
percent of American men in prison (10 percent of African American men), more
than 3 percent of the American population in some form of correctional custody,
and by some estimates, as many as 1 in 3 Americans have their names in
searchable police and court records.

This calls for a perspective on
incarceration that goes beyond the prison to study the institutions of criminal
justice, the form and structure of the urban (and increasingly rural)
environment, the history of America’s obsession with confining and or excluding
threatening “others” (indigenous peoples, immigrants, the psychiatrically
disabled among others), the biology of chronic illnesses that are deepened by
prolonged exposure to incarceration.We
think “carceral geographies”, although framed initially by geographers (itself
a very broad “discipline”), fits the scope of this problem.

Students will explore a range of
foundational questions including: How do we understand the historical and
juridical relationship between carcerality and conceptions of human being? How
do the domains of carcerality move across a range of global sites and scales?
How does this relationship inform concepts of time, place, culture, policy,
etc.? How have artists, scholars, and activists, including those who have
experienced incarceration, produced representations of, knowledge about,
and challenges to carceral life?

This moment is right to raise these questions also because of the historic and contemporary importance of Berkeley and the Bay Area as a hub for students, faculty, and activists engaged in contesting mass incarceration. The growing body of formerly incarcerated students and (soon) faculty at Berkeley and other leading institutions are at the core of this intellectual in-gathering and the opportunity it offers to understand and overcome this dire period in our common American history. Just as California has been the Mississippi of mass incarceration (see chapter 2 of Mass Incarceration on Trial), California's premier public university should be the leading national center of research, resistance, and restorative justice work.

The kind of synthetic thinking that
a course thread invites is particularly critical at this moment when signs of
change are everywhere and yet evidence of mass incarceration shape shifting and
hardening into the American landscape is undeniable.Compared with the mid 1990s, when a broad
consensus on expanding extreme punishments (life imprisonment, the death
penalty) for felons that were perceived as threatening every corner of America,
including its supposedly safe suburbs (remember Polly Klass), the climate of political
discussion has changed dramatically. Decriminalizing or even legalizing soft
drugs like cannabis, and ending routine incarceration for even dealers in hard
drugs has become politically acceptable, while a wide range of political
leaders call for strategies to reduce our reliance on incarceration for public
safety (read Barry Krisberg's contemporaneous article here, may require library id).For three years, from 2009 to
2013, the nation’s prison population actually dropped in absolute numbers as
releases crept over admissions. At the same time, powerful narratives of the imperative
to incarcerate “violent”, “sexual”, and “serious” crime remain fully active
despite a dramatic drop in violent crime since the 1990s.These terms, are inextricably embedded in
racial meanings that are likely both historical and cognitive in operation,
which means a carceral geography refocused on repressing crimes of these types
will produce the same kinds of degrading policing, prosecution and imprisonment
that we have now (only slightly smaller in scale).We do not even have confidence that the
latter point will be true.In 2013, according
to the federal government’s latest statistics (the prison population ticked up by
a fraction (thanks to immigration based population growth our incarceration
rate, prison population compared to overall national population, continued to
tilt down). The struggle to overcome mass
incarceration and its pervasive effects on the US population and landscape will
take a generation or more, and it will require large numbers of active citizens
with a commitment to see the job done.Those citizens will need not a broad toolkit of analytical frames and
historical insights to address not just mass incarceration as it exists today but
in the myriad of forms it is likely to take as the current crisis of legitimacy
either deepens or stabilizes (its is already shape shifting before our very eyes).

This years marks the 50th
anniversary of the year Civil Rights as a social movement triumphed in its half
century long quest to outlaw “Jim Crow” segregation with the passage of the Civil
Rights Act of 1964, today the major platform for equal rights in employment,
education, housing and commerce.Segregation
quickly lost its defenders, and its public narratives.What remained however were pervasive patterns
of residential and employment segregation that has tended to reproduce
itself.Today we live with far higher
levels of segregation than activists would have settled for in 1964.I’m not counting on being there, but I invite
readers to hold this moment accountable in 2034, or 2064, did we end mass
incarceration or did it simply shift its shape, reframe its narratives, and
morph into a new carceral normal?